Visnumolakala v Minister for Immigration
[2006] FMCA 1209
•27 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VISHNUMOLAKALA v MINISTER FOR IMMIGRATION | [2006] FMCA 1209 |
| MIGRATION – Delegate’s decision – points test for skilled permanent residence visa – language assessment where no examination – points for employment experience – relevance and effect of PAM guidelines – no jurisdictional error shown. |
Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.51A, 66(2)(c), 66(3), 93, 93(1), 94(1), 94(3), 95, 96, 338(2)(a), 474(1), 483A, 499, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), regs.1.03, 2.26A(4)(a), 2.26A(4)(b), 2.26A(5), Sch.2 cll.136.222, 136.223, 136.411, Sch.6A
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Choo Ai Lin v Minister for Immigration & Ethnic Affairs(1996) 45 ALD 291
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426, (2005) 63 NSWLR 699
El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Drake and Minister for Immigration & Ethnic Affairs (No 2)(1979) 2 ALD 634
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SVHB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 18
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Vanstone v Clark (2005) 147 FCR 299
| Applicant: | RAVI KUMAR VISHNUMOLAKALA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG2103 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 9 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Campbell |
| Solicitors for the Applicant: | Vimal Lawyers |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant must pay the respondent’s costs in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2103 of 2005
| RAVI KUMAR VISHNUMOLAKALA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed on 9 August 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of a delegate of the respondent dated 19 July 2005, which refused an application for a Class BN subclass (136) Skilled – Independent permanent residence visa.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the delegate’s decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant qualifies for the visa.
One of the criteria for the visa was “the applicant must be outside Australia when the visa is granted” (Sch.2 cl.136.411 of the Migration Regulations 1994 (Cth) (“the Regulations”)). The consequence is that, although the applicant was present in Australia when applying for the visa and may still be here, he did not have a right of merits review by the Migration Review Tribunal (see s.338(2)(a)). It was not suggested by the Minister that there was any discretionary reason for refusing relief, if I were satisfied that the delegate made a jurisdictional error.
A further consequence of this criterion was that, although the delegate was obliged to notify the applicant of the visa criteria which she considered had not been satisfied, she was under no obligation to “give written reasons … why the criterion was not satisfied” (see s.66(2)(c) as modified by (3)). Thus, although a “decision record” is in evidence before me, it is apparent that this was intended to provide only a cursory explanation of the decision.
In the absence of a duty on the delegate to explain fully how evidence was assessed, it becomes difficult to draw inferences from the absence of discussion of evidence or submissions presented by the applicant’s agent, that the delegate failed to take these things into consideration (c.f. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and Vanstone v Clark (2005) 147 FCR 299 at 359‑360). A similar evidentiary problem faces the applicant when challenging the procedural decisions taken by the delegate, since she was under no obligation to explain how she regarded relevant provisions in the Departmental Procedures Advice Manual (“PAM”).
The applicant’s application for the visa was lodged on 13 January 2004 by his migration agent. It presented evidence of the applicant’s Indian qualifications in science and computer programming, and his subsequent employment in India between 1996 and 2002, in the United Kingdom between 2002 and 2003, and in Australia since 2003.
It nominated the skilled occupation upon which he sought permanent migrant entry to Australia as “analyst programmer” ASCO code 2231‑17. There is no evidence before the Court to explain this occupation, or its distinctions from other occupations in the field of computer programming.
To establish his occupational level, the applicant presented a skills assessment from “the relevant assessing authority”. This was a letter dated 13 November 2003 from the Australian Computer Society (“the Society”) which stated: “your skills have been assessed to be suitable for migration under 2231‑17 of the ASCO Code, being the skilled occupation indicated that you intend to nominate in a General Skilled Migration application”. This language appears directed to establishing satisfaction with the visa criterion in item 136.222:
136.222The skills of the applicant for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
Although it would seem that the Society took into account the applicant’s history of employment as a computer programmer which I shall detail below, I am unable to read its letter as providing the delegate with any opinion on whether the whole period of his past employment, in particular in India, had been at the level of ASCO Code 2231‑17.
An assessment of past employment was a matter raised by an element in a “points” test arising under a different criterion. This criterion, to be satisfied at the time of decision, was:
136.223The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.
The cited subdivision of the Migration Act empowers procedures for applying a “points” test, by assessing an applicant against a prescribed table of qualifications for which a range of “points” are given (s.93). The Minister also sets an “applicable pass mark” from time to time which determines whether the applicant’s assessed score “is taken to have received the qualifying score” (ss.94(1) and 96). The Minister also sets a lower “applicable pool mark”, so that applicants who reach this mark but do not qualify are passed into a “pool” of applicants who might in a subsequent period be found to qualify for the visa if the applicable pass mark changes (see ss.94(3) and 95).
The points test relevant to the present visa type was found in Sch.6A of the Regulations. Its table allowed the accumulation of points under categories addressing the skilled occupation (maximum 60 points), age qualification (maximum 30), English language skill (maximum 20), employment experience (maximum 10), spouse skill (maximum 5), Australian educational qualification (maximum 15), extra points for occupations in demand (maximum 20), special bonus points (maximum 5), sponsorship by relatives (maximum 15), and regional education loading (maximum 10).
The descriptions of the tests for awarding points in each of these categories are complex, and are further complicated by regulations which, inter alia, confer dispensing discretions. It is understandable that the Department also issues to the Minister’s delegates lengthy explanatory and procedural guides to this legislation.
In the assessment of the present applicant’s points, the delegate’s decision record states that the relevant pool entry mark for the visa was 70 points and the pass mark was 115. She gave the applicant 60 points for skill, 25 for age, 15 for English language ability, and 5 bonus points, totalling 105. She awarded no points in the other categories. She therefore found that the applicant did not attain a score which qualified him for the visa, but that he had met the applicable pool mark allowing his visa application to be reconsidered in the next two years.
No criticism is made of the delegate’s reasoning on any of these conclusions, except her awarding of 15 rather than 20 points for English language ability, and her award of no points rather than 10 for employment experience. Separate grounds of review attacked each of these conclusions, and it is convenient to examine the delegate’s reasoning on each of them separately.
The delegate’s English language assessment
Part 3 of Sch.6A provides the following points and qualifications:
Part 3Language skill qualifications
| Column 1 Item | Column 2 Qualification | Column 3 Number of points |
| 6A31 | The applicant provides evidence of having achieved an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in a test conducted: | 20 |
| (a) not more than 12 months before the day on which the application was made; or | ||
| (b) during processing of the application | ||
| 6A32 | The applicant provides evidence of having passed the Occupational English Test: | 20 |
| (a) not more than 12 months before the day on which the application was lodged; or | ||
| (b) during processing of the application | ||
| 6A33 | The applicant provides evidence of having achieved an IELTS test score of at least 5 on each of the 4 test components of speaking, reading, writing and listening in a test conducted: | 15 |
| (a) not more than 12 months before the day on which the application was made; or | ||
| (b) during processing of the application |
It is apparent that all of these items require the presentation of results from sitting an IELTS or Occupational English examination.
The nature of these examinations and, in particular, the difference in language skills reflected in achieving 5 rather than 6 in the IELTS test components, was not explained in any evidence before the Court.
The qualifications in this part of the table are subject to the following regulations:
2.26A …
(4) For subsection 93 (1) of the Act, the Minister:
(a)must not give the applicant a prescribed number of points for more than 1 prescribed qualification in each Part of Schedule 6A; and
(b)must give the applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances and for which the prescribed number of points is the highest for any such prescribed qualification; and …
(5)The Minister may determine that the applicant is proficient in English to a level equivalent to that mentioned in an item in Part 3 of Schedule 6A, if the Minister determines that it is not reasonably practicable, or not necessary, for the applicant to be tested using the IELTS test.
It was common ground between counsel before me that reg.2.26A(5) gave the delegate a discretion to award 20 or 15 points if she was persuaded that the applicant had established an English language skill equivalent to that shown in scoring respectively 6 or 5 under the IELTS test. It was also common ground that the delegate exercised this discretion when awarding 15 points to the applicant, since he never presented any IELTS or Occupational English Test results.
No challenge was made to the delegate’s implicit opinion that, to this extent, it was “not necessary, for the applicant to be tested using the IELTS test”.
The applicant’s contention is that the delegate made a jurisdictional error when not accepting the submissions of the applicant’s agent that he should be assessed as having English skills equivalent to a score of 6 on the IELTS test, so as to award him 20 points. It was also contended that she erred by not warning the applicant that she would only award 15 points, thereby denying him an opportunity to achieve 20 by sitting for the IELTS test and achieving a score of 6 in that test.
As I understood Ground 1 of the amended application as addressed by counsel, it was contended that the delegate failed to take relevant material into account when deciding not to award 20 points, and that the delegate was in breach of obligations of procedural fairness by not warning the applicant before declining to do so.
The applicant’s arguments on both of these contentions sought to gain strength from the relevant parts of PAM. I shall extract these, after recounting the course of correspondence between the applicant’s agent and the Department, and the relevant part of the decision record.
The correspondence was:
i)The applicant’s visa application lodged on 13 January 2004 claimed that he had “functional or better” ability to communicate in English, and that his “main language” was “Telugu, English”. He did not enclose any documents providing “evidence of English language ability”.
ii)His agent’s submission to the Department lodged on 29 June 2004 invoked the Minister’s discretion to waive the need to sit the IELTS test, and sought an assessment of 20 points by reference to item 6A31 under Sch.6A. It said:
7.English Language Ability of the applicant
The applicant is holding a Bachelor of Science majoring in Computing degree from the Osmania University, which is a 3 years Bachelors degree and the medium of instruction throughout was English. He is a Microsoft Certified Professional having successfully completed SQL Server 6.5, Visual Basic 5.0 and Architecture I Examinations, all of which were also conducted in English. Additionally he also holds an 18‑month Honours Diploma in Computer Applications from the Centre for Computer Information & Training. The medium of instructions for this qualification was also English. He has worked as an Analyst Programmer both in London, United Kingdom (from March 2002 to January 2003) and in Australia (from June 2003 to Present). He currently holds a Subclass 457 Business Long stay visa sponsored by Brain Tech Pty Ltd. Presently the visa applicant has been overseas working on some offshore projects for Brain Tech Pty Ltd. Throughout the time, the visa applicant has worked in the UK and Australia, his language in both his working environment and his living environment has been English. He has undertaken various software projects which involved English language and his dealings with the clients also have been in English.
We submit that according to the Procedure and Advise Manual of DIMIA, the delegate of the Minister can take into account the following type of evidence to invoke the awarding of points where testing “is not necessary”.
·Where an applicant is a native English speaker or
·Where the applicant holds an award (being a degree, a higher degree, a diploma or a trade certificate) from an Institution where all instruction has been conducted in English (the duration of the full time study for this award should be at least 2 years).
The visa applicant is required to have a Competent English standard. Item 6A31 of the Regulation states that the applicant must have a generally effective command of the language. They must be able to use and understand fairly complex language, particularly in familiar situations. The applicant has demonstrated that he possesses this standard of English through his qualifications which were obtained while undertaking all his studies in English as well as his work experience in different English speaking environments.
We respectfully submit in view of the above written submissions and the documentary evidence provided with this visa application, the visa applicant has competent knowledge of English and therefore eligible for the award of 20 points for his English language ability.
We ask the delegate of the Minister, based on the above submission to waive the requirement of appearing for the IELTS examination and award 20 points for the English language ability for the primary applicant.
(emphasis in original)
iii)The agent’s reference to a “Competent English standard” for achieving 20 points by equivalence with item 6A31, adopts a term found in PAM cl.72 which I shall set out below. PAM cl.72 distinguishes this level of English with a lesser standard, which is termed “Vocational English” and is suggested to provide equivalence with item 6A33 for a score of 15.
iv)A letter from the Department dated 17 January 2005 made various requisitions in relation to health, character and other requirements. It also required evidence of “Vocational English”, by stating:
·Ravi Kumar Vishnumolakala is required to provide evidence of Vocational English.
Evidence may include:
· A degree, a higher degree, a diploma or trade certificate from an institution where all instruction has been conducted in English (Minimum 2 years)
· A NAATI accreditation in English.
· Evidence of study and/or work experience in an English‑speaking country for a considerable period.
(emphasis in original)
v)The agent’s response dated 16 March 2005, did not expressly address the suggestion that the delegate was contemplating waiving the IELTS test only to the extent of awarding 15 points and not 20. However, it maintained a submission that he “has a competent knowledge of English language”. It said:
Please note that earlier a certified copy of the transcript and degree from the Osmania University was provided which indicates that this was a 3 years degree was the medium of instruction was English. These documents were forwarded to your office together with the application on 13th January 2004. Copies of those documents are enclosed with this letter for your easy reference.
…
The applicant completed a Bachelors degree with a medium of instruction in English. The applicant has worked in the United Kingdom and Australia. In London, the applicant remained employed at the Allied Info Tech Limited from March 2002 to January 2003. Thereafter the applicant remained employed in Australia for more than 6 months on Subclass 457 visa at Braintech Pty Ltd. Work reference letters for the applicant’s employment including letters from Braintech Pty Ltd, Allied Info Tech Limited and Jeshmasoft were provided earlier with the application but their copies have been attached for your ready reference. Based on the information already provided, we respectfully submit that the applicant has a competent knowledge of English language and therefore English testing [is] not necessary.
vi)The submission enclosed a certificate, not previously presented to the Department, from Osmania University at Hyderabad which certified that the applicant “has passed his B.Sc. Degree of Osmania University … held in April 1994 in Second Division through English Medium” (emphasis in original).
No further communication passed between the Department and the applicant’s agent, before the delegate made her decision. Her decision record said, in relation to the English language test:
Language
People with competent English have a generally effective command of the language. They are able to use and understand fairly complex language, particularly in familiar situations. The IELTS standard for competent English is a score of at least 6 on each of the 4 components of the test.
People with vocational English have a reasonable command of the English language, coping with overall meaning in most situations. The IELTS standard for vocational English is a score of at least 5 on each of the 4 components of the test.
Applicants with competent English are eligible for 20 points and applicants with vocational English are eligible for 15 points.
The applicant has provided evidence of having studied and lived in an English speaking country and is deemed to have vocational English. The appropriate allocation is 15 points.
Counsel for the applicant argued that the procedures and reasoning of the delegate did not conform with suggestions in PAM that applicants whose English was not accepted as equivalent to level 6 under IELTS should be “given an opportunity to sit a test”. In particular, he referred me to two sections of a lengthy guide to decision‑making in relation to the English test:
70IELTS TESTING ‘NOT NECESSARY’
70.1Evidencing
Officers should use the relevant discretionary power to decide that IELTS testing is ‘not necessary’ only if the applicant has submitted evidence that they have the appropriate level of English, such that it would be unnecessary for the applicant to sit an English test. The type of evidence that officers could take into account would include that the person:
·has passed the OET in relation to their nominated skilled occupation or
·is a native English speaker or
·has sat an IELTS test more than 12 months before applying for their visa but officers are satisfied the applicant’s English has not deteriorated since sitting this test or
·holds an award (being a degree, a higher degree, a diploma or trade certificate) from an institution where all instruction has been conducted in English. The duration of full‑time study for this award should be at least 2 years (see section 70.2 Student visa holders) or
·holds NAATI accreditation or
·has a recent English test score, being a test that, under policy, is considered acceptable for the purpose of establishing English proficiency (see section 68 Using other English test results) and that equates to an applicable score on the IELTS test or
·has studied and/or worked in an English‑speaking country for a considerable period – see, for example, section 70.2 Student visa holders.
Officers who are not satisfied with the evidence presented to them should not award points (or decide that the person has vocational English) under the discretionary power. Such applicants should be asked instead to sit an English test, usually IELTS if that is available.
For Schedule 6A cases, if officers are considering awarding less than the maximum 20 points under the discretionary power of regulation 2.26A(5) in cases where testing is considered to be ‘not necessary’, the applicant should be given an opportunity to sit a test in order to establish whether a more favourable assessment is available.
…
72ENGLISH EQUIVALENT TO SCHEDULE 6A ITEM 6A31 AND 6A33
72.1Item 6A31 – Competent English
The applicant must have a generally effective command of the language. They must be able to use and understand fairly complex language, particularly in familiar situations. The IELTS standard is a score of at least 6 on each of the 4 components of the test – speaking, reading, writing and listening.
72.2Item 6A33 – Vocational English
The applicant must have a reasonable command of the language, coping with overall meaning in most situations. They must be able to communicate effectively in their field of employment. The IELTS standard is a score of at least 5 on each of the 4 components of the test – speaking, reading, writing and listening.
For Schedule 6A cases, if officers are considering awarding less than the maximum 20 points under the discretionary power of regulation 2.26A(5) in cases where testing is considered to be ‘not necessary’, the applicant should be given an opportunity to sit a test in order to establish whether a more favourable assessment is possible – see section 70 IELTS testing ‘not necessary’.
This vocational level English is that required also of:
·Designated Area‑sponsored visa applicants, unless section 7 below applies and
·Most ENS (121/856) applicants.
…
Counsel for the applicant contended that the procedures followed by the delegate in the present case did not include giving the applicant the opportunity to sit a test which is referred to in PAM. He argued that this revealed that the delegate had overlooked a relevant part of PAM, and therefore failed to take into account a relevant matter when making her decision.
Counsel for the Minister did not concede that the applicant had not been given the opportunity suggested in PAM, although he accepted that the applicant had been given no explicit invitation to sit the test so as to achieve 20 points rather than 15. He contended that I could not conclude that the delegate had not considered the relevant parts of PAM. Further, even if it had been overlooked, this could not establish the jurisdictional error of failing to take into account relevant matters, since the legislation did not require, as an incident of jurisdiction, that the Minister and her delegates must take into account or follow the contents of PAM.
Although no evidence was presented to me as to the general purposes and role of PAM, it is clear from those parts of PAM which were tendered in evidence that it is no more than an advisory administrative guide to delegates in relation to their application of the legislation. Moreover, as a matter of law, it could have no higher status. It was not contended for the applicant that the relevant parts in evidence amounted to “written directions” given by the Minister under s.499 about “the performance of … functions” or “the exercise of … powers”. In my opinion, to any extent that its procedural or substantive contents go beyond repeating the effect of the Migration Act and Regulations, they are incapable of being elevated into legally necessary or relevant considerations of the type identified by Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39‑42.
Although reference was made by the applicant’s counsel to Brennan J’s well known discussion of “policy” in Re Drake and Minister for Immigration & Ethnic Affairs (No 2)(1979) 2 ALD 634, I do not consider that the parts of PAM which are in evidence show any real analogy with a Ministerial policy of the type discussed by Brennan J.
I accept, and respectfully agree with the opinion of Gray J in El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038 at [45]:
PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. … A failure to apply the guidelines may have significance in establishing some error on the part of a decision‑maker, but it is not of itself a jurisdictional error.
Tamberlin J took a similar view in Choo Ai Lin v Minister for Immigration & Ethnic Affairs(1996) 45 ALD 291 at 298.
This analysis provides a fundamental reason why a failure by the delegate to take into account or to follow a procedure suggested by PAM could not itself provide jurisdictional error.
Moreover, I am not satisfied that, in fact, the present delegate failed to consider any part of PAM, or failed to provide the applicant with an opportunity to sit the IELTS test so as to achieve a score of 20 points.
As I have explained above, no adverse inference can be drawn from the absence of express discussion in the decision record of why the decision‑maker did not give a clearer warning that she was contemplating a score of 15 for “Vocational English” rather than 20 for “Competent English”, nor why she did not consider it necessary expressly to invite the applicant to sit the IELTS test.
PAM does not spell out the manner or circumstances in which its suggested procedure of “given an opportunity to sit a test” should be followed. In my opinion, it was open to the delegate to have concluded that the applicant had been given that opportunity. The correspondence between the applicant’s agent and the Department which I have set out above, showed clearly that the applicant’s agent was fully aware of the need for the applicant to present an IELTS score unless this was waived, and that a waiver might be given to achieve either the Competent English or Vocational English equivalence. In my opinion, in these circumstances, it would have been open to the delegate to have considered that the agent was put on sufficient notice by the letter of 17 January 2005 that only the lower score was in contemplation, by reason of its reference, in emphasised font, to “Vocational English” rather than “Competent English”. Although the agent’s response maintained a request for a higher assessment, I do not read it as showing that the agent was under any misapprehension in this respect. Moreover, no evidence has been led from the agent or the applicant to establish that they were under such a misapprehension.
I am therefore not satisfied that, in fact, the delegate did fail to observe a procedure suggested by PAM in relation to the English language score, or that the applicant’s agent was misled as to how the delegate was proceeding.
This finding also is an answer to the alternative argument presented under Ground 1, which contended that the delegate’s failure to follow the procedure suggested by PAM, or to warn the applicant that it would not be followed, amounted to a denial of procedural fairness.
It is therefore unnecessary for me to enter into an examination of the legal premises for this contention, which would take me into interesting legal territory as to whether principles of “legitimate expectation” are now absorbed into general principles of procedural fairness (c.f. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Lam”) at [28]‑[34], [81]‑[83], [116]‑[122], and [138]‑[148], and Basten JA in Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426 (“Country Energy”) at [98] and following – note that this is not included in the report at (2005) 63 NSWLR 699).
I also do not need to explore the extent to which an administrative guide such as PAM is capable of giving rise to a procedural representation which principles of procedural fairness would require to be observed in the absence of a warning before any deviation. On the evidence before me, which was confined to the tender of extracts from PAM, I would not conclude that it was intended to make, or be read as making, procedural promises to people dealing with the Minister’s delegates, such that a departure should be found to carry legally enforceable consequences. Rather, in its terms, it appears to be only an internal administrative manual. I do not consider that its publication to migration agents and others would extend its status and legal effect. In my opinion, the evidence does not establish PAM as a published instrument or announced policy which is relevantly analogous to the governmental representations which some judges have held can give rise to “legitimate expectations” or rights of procedural fairness to all persons affected, even for those ignorant of its existence or contents (c.f. the discussion in Lam and Country Energy cited above).
Moreover, I am not satisfied in the absence of evidence from the applicant or his agent, that they ever believed that the present delegate would warn before deciding not to follow this aspect of PAM, or that they relied upon this aspect of PAM when deciding not to tender more evidence that the applicant could achieve level 6 in the IELTS test or its equivalent (c.f. Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [62], [113], and [256]; Lam (supra) at [38], [106], and [149]‑[152]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [53]; SVHB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 18 at [16]).
Counsel for the applicant attempted to meet the point made in the last paragraph, by tendering from the bar table an email correspondence between the applicant’s agent and a different delegate, concerning a different visa application made by a different person. This suggested that there had been conversations in that case in which these persons discussed the need for IELTS testing, and that this visa applicant was sent a letter “requesting that the principle applicant sit an IELTS test to demonstrate competent English and his spouse to sit a test to demonstrate functional English Language ability”. I rejected the tender on the ground that it had no apparent relevance or probative weight in the present case.
For the above reasons, I do not consider that the applicant has made out any ground of jurisdictional error affecting the delegate’s assessment of the points to be allowed to the applicant for his English language skills.
The delegate’s employment experience assessment
Part 4 of Sch.6A provided additional points if the visa applicant could establish that he had been employed in the nominated skilled occupation or another prescribed skilled occupation for a period of at least 36 months in the four years preceding his visa application.
It provided:
Part 4 Employment experience qualifications
| Column 1 Item | Column 2 Qualification | Column 3 Number of points |
| 6A41 | For a period of, or for periods totalling, at least 36 months in the 48 months immediately before the day on which the application was made, the applicant has been employed in the nominated skilled occupation, or a closely related skilled occupation, that is specified by Gazette Notice as a skilled occupation for which 60 points are available | 10 |
| 6A42 | The applicant has been employed in a skilled occupation for a period of, or for periods totalling, at least 36 months in the 48 months immediately before the day on which the application was made | 5 |
The applicant’s evidence of his preceding four years’ employment was:
i)In his visa application he set out the following employment history:
| Employer and city | Occupation/position | Period | ||
| MONTH | YEAR | |||
| Braintech Pty Ltd, Sydney, NSW | Analyst Programmer | FROM | 06 / | 2003 |
| TO | Present | |||
| Allied Infotech Ltd, London, U.K. | Analyst Programmer | FROM | 03 / | 2002 |
| TO | 01 / | 2003 | ||
| Jeshma Soft. Secunderabad, India | Programmer | FROM | 04 / | 1996 |
| TO | 01 / | 2002 | ||
ii)The distinction between his occupation in his Indian employment as “programmer” rather than “analyst programmer” was repeated at a later part of the form which requested “details of your employment history for the last 5 years”.
iii)It was also shown in the separate references from his three employers. Thus, his Indian employer referred to him “working in our organization as a Senior Programmer from Apr’96 to Jan’02”, but the later employers said that he had worked for them as an “Analyst Programmer”.
iv)The same distinction was shown in his curriculum vitae, and in his agent’s submission dated 26 June 2004.
v)However, the agent submitted:
8.Employment Experience Qualification
The applicant has been employed as an Analyst Programmer from June 2003 to present at Brain Tech Pty Ltd. Prior to that he worked as an Analyst Programmer from March 2002 to January 2003. From April 1996 to January 2002, he worked as a Programmer with Jeshmasoft in Secunderabad, India. The application was lodged on 13 January 2004. Thus he has a relevant work experience of 43 months in the 48 months immediately before the date on which the application was submitted to the Adelaide Skilled Processing Centre (The Regulation requires at least 36 months before 48 months of the lodgement of the application with the Adelaide Skilled Processing Centre).
We submit that the applicant is eligible for the award of 10 points for his employment experience qualifications (Schedule 6A Part 4 6A41).
(emphasis in original)
The delegate’s decision record gave the following explanation why no points had been awarded for work experience:
Work Experience
Points for work experience are awarded based on the nominated occupation and the length and type of the applicant’s employment in the 4 years prior to application.
10 points are awarded to applicants who nominate an occupation worth 60 points and who have worked in their nominated occupation or a closely related occupation, for at least 3 of the 4 years immediately before they apply. 5 points are awarded to applicants whose nominated occupation is worth 40, 50 or 60 points and who have worked in any occupation on the Skilled Occupations List for 3 of the 4 years immediately before they apply.
The applicant has not provided sufficient evidence of having worked in their nominated occupation or closely related occupation for at least 3 of the 4 years immediately before they apply. Therefore no points was awarded.
It was not submitted by the applicant’s counsel that this revealed any error of law, in the sense of misunderstanding the language or legal effect of Part 4 of Sch.6A. Rather, Ground 2 of the amended application contended:
The Respondent fell into a jurisdictional error in that she failed to consider and evaluate the evidence and claims presented by the Applicant in relation to his Specific Work Experience for which he was claiming 10 points. Therefore there was a failure to exercise the Respondent’s jurisdiction.
In my opinion, this contention fails, because I am not satisfied as to its factual premise: that there was relevant evidence presented by the applicant which was not considered by the delegate. As I have explained above, the delegate was under no obligation to give reasons containing a discussion and findings in relation to the evidence and submissions presented, and I can draw no inference from the absence of such discussion. Counsel was unable to point to any parts of the decision record or correspondence which points to the overlooking of evidence or submissions.
The applicant’s counsel argued that the overlooking of evidence could be established by the lack of any apparent justification for the rejection of the submission made by the applicant’s agent. In effect, his submission was that it was not open to the delegate not to award points for work experience, on the evidence before her.
However, I am not so persuaded. As I have indicated above, there was an apparent distinction in the applicant’s work history for the preceding four years, in which a substantial part involved employment in an occupation with a name different from that of the nominated skilled occupation of “analyst programmer”. The documents which were presented to the Department maintained this distinction, and suggested that two separate occupations might be recognised in the industry.
I can find no evidence before me, or the delegate, that the applicant’s “senior programmer” position in India met the ASCO classification 2231‑17 so as to allow him to obtain 10 points under item 6A41 of Sch.6A. Nor can I find such evidence showing that his Indian position was a “skilled occupation” as defined in reg.1.03 for the purposes of item 6A42, so as to obtain 5 points.
I am therefore not satisfied that the delegate’s conclusion was not open to her as a matter of law. Indeed, I consider that it was more probably properly based upon the evidence presented by the applicant. On the evidence before me, I consider that it was open to the delegate to award no points for the reason that the applicant had “not provided sufficient evidence”.
Counsel for the applicant argued that the applicant should have been warned of this conclusion, and given an opportunity to present further evidence. However, even at common law unfettered by s.51A of the Migration Act, a decision‑maker is not required to warn as to an insufficiency of evidence (c.f. Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591‑592, cited in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [22], Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [76] and [208]).
Counsel for the applicant tendered parts of PAM relevant to this element of the delegate’s decision, and submitted that there was a “legitimate expectation” element in this ground also. However, he did not develop this argument, and I am unable to identify any aspect of PAM which assists the applicant’s case.
For the above reasons, I consider that none of the grounds of jurisdictional error argued for the applicant are made out.
The delegate’s decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.
A consequential costs order was agreed.
I certify that the preceding fifty‑one (51) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 27 September 2006
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